On Sunday, Democratic members of the Federal Election Commission vented their anger to The New York Times.
“The few rules that are left, people feel free to ignore,” Ellen Weintraub said.
“The likelihood of the laws being enforced is slim,” Chairwoman Ann Ravel added. “I never want to give up, but I’m not under any illusions. People think the F.E.C. is dysfunctional. It’s worse than dysfunctional.”
As if to prove the point, the agency released figures this week on the number of fines it doled out in 2014, with a total just short of $600,000. Not only is that the lowest total since the current system launched in 2001, but the number looks especially large when compared to the increasing amount being spent on elections. Spending in 2014 totaled about $7 billion—the highest nominal value ever. (The 2012 election cost a little more than $6 billion.) The average fine for a major violation reached a low of about $13,000, half of what it was the previous year and less than a tenth of the record average.
Everyone who's paying any attention at all knows that spending on elections is skyrocketing. The Times estimates the 2016 election could cost $10 billion. Polling shows that a majority of Americans would favor more limitations on spending, and think the system advantages the wealthy, but a powerful minority feels that many limitations on campaign spending are an impermissible infringement on free speech.
Regardless, most people on either side of that divide share a basic assumption that it is important to have some laws on campaign spending to avoid straightforward corruption, and that whatever rules exist will be followed. This is, after all, a nation of laws—so even if the laws aren't strong, they're going to be enforced, right?
Should you think this is a naïve position, consider that it's the view espoused by Chief Justice John Roberts, who wrote the Supreme Court's decision in McCutcheon v. FEC, striking down aggregate limits on spending per cycle.
"Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption," Roberts wrote in McCutcheon. "We do not doubt the compelling nature of the 'collective' interest in preventing corruption in the electoral process."
The vanishingly small number of fines handed out, despite increasing spending, coupled with Ravel’s complaint suggest that this faith may be misplaced. Believing that the election system protects against even the most obvious cases of corruption might actually be naïve. Not only are campaign-spending laws weak and getting weaker with almost every relevant court decision, the ones that remain on the books are, in large part, irrelevant or futile.
While Republican and Democratic members of the FEC each blame each other for the bad blood on the commission, the Republican members don't actually dispute the fact that laws aren't being enforced. They point out, as they have for some time, that the commission was designed to have three members of each party, for a total of six. In the case of a tie, the commission takes no action, meaning that a three-commission bloc from either party can forestall enforcement. If the FEC wasn't designed for deadlock, why would Congress have built it this way?
The result, as Christopher Rowland reported in 2013, is that even clear violations of the law go unpunished, because of Republican members' ideological opposition to the laws themselves. It is a bureaucratic override on legislative intent.
This is essential but largely unknown background for understanding headlines about campaign-finance. Take the case of super PACs, the special form of independent groups brought into existence by the Citizens United case and a lower-court decision soon afterwards. Legally, candidates are not allowed to coordinate with the bodies. In practice, that rule looks like a farce. They've developed as independent groups that work to support a single candidate, and they're often run and staffed by former close aides to that candidate.
Just this week, it emerged that Hillary Clinton is embracing a super PAC that will support her, including meeting with fundraisers to the super PAC. That sits uneasily with Clinton's vow to work for stricter campaign-finance laws—her allies say they can't unilaterally disarm—but it likely doesn't break the letter of the law. Meanwhile, Jeb Bush is preparing to delegate an astonishing array of tasks to Right to Rise, a super PAC he has set up but will dissociate himself from when (or if) he makes his run for president official. The Associated Press reported that the central idea is to place Right to Rise:
in charge of the brunt of the biggest expense of electing Bush: television advertising and direct mail. Right to Rise could also break into new areas for a candidate-specific super PAC, such as data gathering, highly individualized online advertising and running phone banks .... The goal is for the campaign to be a streamlined operation that frees Bush to spend less time than in past campaigns raising money, and as much time as possible meeting voters.
Each of these strategies is carefully calibrated to push the law to its limits. There is no indication that these, or other groups, intend to break it. But that law seems unlikely to be enforced by the FEC, even in the case of obvious violations; and when it is enforced, it will probably be with minimal, slap-on-the-wrist penalties. That may tempt some candidates, or groups, to push harder than they otherwise might, or even to do more than they are legally allowed to do. After all, what's a $13,000 fine to a $1.3 billion campaign?
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